Ohio Masonic Home

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ohio Masonic Home and National Union of Hospital and Health Care Employees, Local 1199H, RWDSU, AFLCIO. Case 9-CA-11355 December 7, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on May 11, 1977, by National Union of Hospital and Health Care Employees, Local 1199H, RWDSU, AFL-CIO, herein called the Union, and duly served on Ohio Masonic Home, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 9, issued a complaint and notice of hearing on June 7, 1977, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Adminis- trative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on April 25, 1977, following a Board election in Case 9-RM-762 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commenc- ing on or about May 4, 1977, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On June 27, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 18, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 26, 1977, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the I Official notice is taken of the record in the representation proceeding, Case 9-RM-762, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Senes 8, as amended. See LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 233 NLRB No. 148 National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment Following the election in Case 9-RM-762, 2 Re- spondent filed objections to the election with the Regional Director. After the Regional Director filed his Report on Objections to the Election in which he recommended to the Board that all of Respondent's objections be overruled, Respondent filed exceptions to the Regional Director's report with the Board. The Board adopted the Regional Director's findings and recommendations and issued a certification of representative. Respondent has subsequently refused to bargain with the Union as the certified representa- tive of its employees, and its refusal has given rise to the issuance of the complaint in the present case. In its answer to the complaint and also its response to the Notice To Show Cause, Respondent asserts that the bargaining unit in which the election was held, as described in the certification of representa- tive issued by the Board in Case 9-RM-762, is not an appropriate bargaining unit because many of the job titles set forth in such certification are no longer utilized and other current job classifications have been omitted from the unit description. The record shows that the parties agreed on November 2, 1976, to the bargaining unit description set forth in the Stipulation for Certification Upon Consent Election, the RM petition, and the official election notice. Subsequently, on November 9, 1976, Respondent by letter advised the Board's Regional Office that certain job classification titles had been revised. Respondent expressed its hope that the Union would "agree to amend the Stipulation Agreement to eliminate any confusion as to the classifications of employees comprising the bargain- ing unit." However, the Union was not agreeable to the changes requested by Respondent. Therefore, in the absence of a new agreement by the parties, the Regional Director conducted the election in the unit described in the consent election stipulation and, subsequently, the Union was certified in this same unit. Although Respondent filed objections to the election, none of its objections relates to the matter of the bargaining unit classifications. In our judgment, the Regional Director acted properly in deciding to go ahead with the election in the unit described in the consent election agreement. (C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 2 Not reported in volumes of Board decisions. 1004 OHIO MASONIC HOME The Regional Director had no authority to reform the unit in the absence of such agreement by the parties. The Regional Director's only other available option would have been to decline to proceed with the election and this course of action would be warranted only in a most extreme situation. Here, a comparison of the job description in the agreed-upon voting unit with the job description changes pro- posed by Respondent shows that the latter are not so substantially different from the former as to cause confusion as to the classifications of employees comprising the bargaining unit. Moreover, we note that, although Respondent raised the unit classifica- tion issue with the Regional Office prior to the election, the matter was not raised or even referred to in its objections to the election. Thus, Respondent cannot legitimately complain about the Regional Director's failure to resolve this issue when the matter was not properly placed before the Regional Director for investigation and determination.3 Respondent also argues that it was entitled to a hearing because it did not have "an opportunity to demonstrate the inadequacy of the representation proceedings" and because the Region's handling of the job description issue amounted to a denial of due process. It has been established that parties do not have an absolute right to a hearing on objections to an election. It is only when the moving party presents a prima facie showing of "substantial and material issues" which would warrant setting aside the election that he is entitled to an evidentiary hearing. 4 In our judgment, no such showing has been made here. With respect to the matters raised in Respondent's objections, these objections allege (I) that the Union issued a newsletter arousing racial and ethnic prejudice; (2) that the preparation and use of a work release schedule for voting caused confusion and ill will toward Respondent, and may have caused employee disenfranchisement; (3) that the Union's use of a nonemployee union member who had legal proceedings pending against her, relative to a previous altercation with an employee of Respondent as an election observer, interfered with the election's laboratory conditions; (4) inadequate protection of the ballot box between voting periods although it was in the custody of the Board agent; (5) that union agents coerced and intimidated bargaining unit personnel; and (6) that at a meeting held by the Union an unidentified person representing himself as 3 See Rules and Regulations of the Board, Sec. 102.69(a). 4 Farah Manuacturing Company, Inc., 203 NLRB 543 (1973); Modine Manufacrunring Company, 203 NLRB 527 (1973): Heavenly Valley Ski Area, a California Corporation, and Heavenly Valley, a Partnership, 215 NLRB 734 (1974); Williams Energy Comrpan,. 218 NLRB 1080 (1975); Allied Meat Company, 220 NLRB 27(1975). 5 There was no discussion of the evidence concerning Objection 4 because Respondent's request to withdraw that objection was approved. an agent of the National Labor Relations Board advised employees of tactics available to discredit Respondent. Respondent later withdrew its fourth objection with the approval of the Regional Director. In his Report on Objections, the Regional Director considered each of Respondent's objections, dis- cussed the evidence with respect thereto which had been uncovered as a result of his investigation,5 and, with respect to each of the pending objections, gave specific reasons why he believed that the particular objection should be overruled. However, Respondent contends that the Regional Director's investigation was totally inaccurate and that Respondent's wit- nesses were virtually ignored during the investigation process. Obviously, such a charge is of a serious nature because it draws in question the impartiality of Board representatives. However, even a charge as serious as this requires some documentation or substantiation to justify an investigation into the matter. Respondent has not been specific as to the identity of witnesses it claims should have been called to testify, the evidence that would have been adduced, or how this evidence would have contra- dicted the findings made by the Regional Director in his report. Accordingly, we are constrained to treat Respondent's charge of a lack of impartiality on the part of the Regional Office as an unsubstantiated allegation which does not warrant further action. Respondent also raises an issue with respect to its objection to the manner in which employees were released to vote. At the time the stipulation was executed, it was agreed that Respondent would prepare a voter release schedule for use during the election, with the additional understanding that charge nurses might be required to make some adjustments for the release of individual voters to ensure constant and adequate patient care. At the preelection conference, it was discovered that Re- spondent had not prepared the schedule but instead planned to allow the charge nurses to release the voters, an arrangement to which the Union would not agree. The parties then agreed that the schedule would be prepared by Respondent, that the Union would inspect the schedule before the election, and that the Board agent would announce over the facility's speaker system when the polls were open.6 When errors were discovered in the schedule after the election had begun, additional announcements I The announcement read: "The polls in the National Labor Relations Board election are now open. Employees who wish to vote may do so at times indicated on schedules posted at all nursing station and time clocks, or employees may vote during their off duty hours whenever the polls are open. 1005 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were made over the speaker system to assure full notice of when employees could vote.T Respondent then contended that confusion and ill will resulted toward it because of the poor voting scheduling which it helped formulate, to which it agreed, and which it executed. On this basis, it seeks to void the election although no evidence was presented that any employee did not vote because of poor scheduling. The Regional Director found that, while voting conditions were different in some respects from what the employees had envisioned, the finding of non- presence of the requisite laboratory conditions did not automatically obtain. Further, the Regional Director found that because of the announcements the employees were adequately notified of the time of the election, and there was not a sufficient irregulari- ty of election procedures to justify setting aside the election. Hence, the Regional Director recommended overruling this objection and we agreed with his recommendation when it was initially before us, and we do now. All issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Ohio Masonic Home, an Ohio corporation, at all times material herein has operated a proprietary nursing and convalescent home in the State of Ohio. The principal office and place of business of Ohio Masonic Home is at 2655 West National Road, Springfield, Ohio. During the past 12 months, Respondent, in the course and conduct of its business operations, received gross revenues in excess of $100,000. During the same period, Respondent purchased and received goods and materials valued in excess of $50,000 from firms located in the State of Ohio, each of whom, in turn, purchased and received said goods and materials at their respective places of 7 The same announcement was made as before with the additional language that "Employees whose names do not appear on the list may vote at any time there is adequate coverage." business in Ohio directly from enterprises located outside the State of Ohio. We find, on the basis of the foregoing, that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED National Union of Hospital and Health Care Employees, Local 1199H, RWDSU, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time service and maintenance employees employed at Respon- dent's Springfield, Ohio, location, including nurs- es aides, orderlies, cooks, kitchen helpers, housek- eepers, groundskeepers, custodial employees, dietary aides, laundry workers, powerhouse em- ployees, maintenancemen, drivers, occupational therapy aides, pharmacy clerks and physical therapy aides and orderlies; but excluding all office clerical employees, registered nurses, li- censed practical nurses, occupational therapists, physical therapists, pharmacists, beauticians, tele- phone operators, professional employees, guards and supervisors as defined in the Act, and all other employees. 2. The certification On December 8, 1976, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 9, designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on April 25, 1977, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. 1006 OHIO MASONIC HOME B. The Request To Bargain and Respondent's Refusal Commencing on or about April 28, 1977, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about May 4, 1977, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since May 4, 1977, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its opera- tions described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Ohio Masonic Home is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. National Union of Hospital and Health Care Employees, Local 1199H, RWDSU, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time service and maintenance employees employed at Respondent's Springfield, Ohio, location, including nurses aides, orderlies, cooks, kitchen helpers, housekeepers, groundskeepers, custodial employees, dietary aides, laundry workers, powerhouse employees, mainte- nance men, drivers, occupational therapy aides, pharmacy clerks and physical therapy aides and orderlies, but excluding all office clerical employees, registered nurses, licensed practical nurses, occupa- tional therapists, physical therapists, pharmacists, beauticians, telephone operators, professional em- ployees, guards, and supervisors as defined in the Act, and all other employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since April 25, 1977, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about May 4, 1977, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) of the Act. 6. By the aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, 1007 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ohio Masonic Home, Springfield, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with National Union of Hospital and Health Care Employees, Local 1199H, RWDSU, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time service and maintenance employees employed at Respon- dent's Springfield, Ohio location, including nurses aides, orderlies, cooks, kitchen helpers, housek- eepers, groundskeepers, custodial employees, dietary aides, laundry workers, powerhouse em- ployees, maintenance men, drivers, occupational therapy aides, pharmacy clerks and physical therapy aides and orderlies, but excluding all office clerical employees, registered nurses, li- censed practical nurses, occupational therapists, physical therapists, pharmacists, beauticians, tele- phone operators, professional employees, guards and supervisors as defined in the Act, and all other employees. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its Springfield, Ohio, facility copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 8 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Na- tional Union of Hospital and Health Care Employees, Local 1199H, RWDSU, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All full-time and regular part-time service and maintenance employees employed at Respondent's Springfield, Ohio location, including nurses aides, orderlies, cooks, kitchen helpers, housekeepers, groundskeep- ers, custodial employees, dietary aides, laundry workers, powerhouse employees, maintenance men, drivers, occupational therapy aides, pharmacy clerks and physical therapy aides and orderlies, but excluding all office clerical employees, registered nurses, licensed practical nurses, occupational ther- apists, pharmacists, beauticians, telephone operators, professional employees, guards and supervisors as defined in the Act, and all other employees. OHIO MASONIC HoME 1008